#002- What Is So Landmark About the 66A judgment?

The present essay discusses the judgment of Shreya Singhal v. Union of India, pronounced by the Supreme Court in March 2015, against the backdrop of the larger debate of individual versus society in construction of the right to freedom of speech and expression in the country. Through a discussion of Constituent Assembly Debates and case law since independence, it is argued that the protection of free speech in India has always been subject to the tension between the individual and the society. Consequently, the dominant approach to laying down the scope of freedom of speech and expression in the country has been via an act of balance between the interests of the individual and that of society. It is then argued that in pronouncing the unconstitutionality of Section 66A, the judgment in Shreya Singhal marks a departure from this two step “balance” test which has been a part of free speech jurisprudence since independence.

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On the morning of 24 March 2015, India’s internet users waited with bated breaths as Justice Rohinton Fali Nariman made his oral pronouncement in the case of Shreya Singhal v. Union of India regarding the constitutionality of Section 66A, and Rules made under Sections 69A (for website blocking procedures) and 79 (for intermediary liability provisions) of the Information Technology Act 2008.[1] Relief and joy took over as the Court declared Section 66A unconstitutional, clarified aspects of Rules under Section 69A and limited the scope of Rules under Section 79. The journey to this point had not been an easy course: Multiple cases of arbitrary arrests and harassment for innocuous posts and comments on the internet were the price. The impugned provisions sparked off nationwide protests and a 10 writ petitions filed in the Supreme Court between 2012 and 2014 by a variety of interests, challenging their constitutionality, the first of them being 21 year old student, Shreya Singhal’s petition. Three years later, a bench of two judges of the Supreme Court pronounced their opinion on the combined pleadings of all these petitions.

Shreya Singhal is a remarkable judgment in many ways: For one, it is the first time since 1960 that the court has struck down a law restricting speech as unconstitutional. Additionally, it lays down the parameters for governance of communication for the media of the 21st century: the internet. And in an expanding regime of censorship in the country—both State and private, the judgment stands like a beacon of hope for the persecuted seafarer with an unpopular opinion.

Free Speech Governance in the Constitution: An Imperfect Balance between Individual and Society

What makes the Shreya Singhal judgment most remarkable though is the strong case for individual freedoms it makes in the jurisprudential understanding of free speech under the scheme of Article 19(1)(a) of the Constitution. The issue of governance of speech has seen tension between the ideas of individual freedom and social cohesion since as far back as the Constituent Assembly debates. When the provision concerning the Right to Freedom of Speech and Expression was introduced as draft Article 13 in the Constituent Assembly for example, several voices objected to the clause concerning restrictions on speech in draft Article 13(2) which acted as a proviso to it. The restrictions laid out in draft Clause (2) were seen as nullification of the freedom of speech and expression guaranteed by draft Article 13(1)(a) to the individual. Interestingly, these restrictions also contain the word “sedition,” whose inclusion was seen as a continuity from the British colonial government by many. Consequently, one popular line of opinion supported in the Constituent Assembly, regarding the scheme of freedoms granted in the draft was that “what is given by one hand is taken by another.”[2] This line of opinion also demanded that draft Article 13(2) be scrapped so that the people of India can finally experience the freedom they fought for.

Contrasted with this is the concern that unfettered rights to individual freedom can result in breakdown of socio-legal structures: A concern which stems from the acts of “elements who want to take advantage of those rights in order to do violence to men, society and laws,”[3] undoubtedly referring to the communal violence which surrounded the Partition. This line of opinion embodies the apprehension that India, being still a nation in its infancy should not become too vulnerable to strife and conflict within itself. Accordingly it sees the necessity of “the government to retain the rights it has done after granting these fundamental rights.”[4] For this second line of opinion, there is an obvious need to limit the individual freedom of speech on some grounds to ensure the tranquillity in the Indian nation and society.

Such tension between these two lines of opinion marks the tension between the individual and the society or nation. And it is this tension which is sought to be resolved by the final text of the 1949 Constitution. This tension is sought to be resolved by answering the “question of questions.” This question of questions, framed by Pandit Thakur Dass Bhargava, is: “Are the destinies of the people of this country and the nationals of this country and their rights to be regulated by the executive and by the legislature or by the courts?”[5] The ultimate answer of the Constituent Assembly is “the courts,” since Bhargava’s proposal to amend draft Article 13(2) to include the term “reasonable” before restrictions is accepted for the final text. Inclusion of “reasonable,” Bhargava argued, would force the Supreme Court to step in with its opinion whenever a question of restriction on Fundamental Rights comes up, simply because the court would be necessary to interpret whether a law restricting freedoms qualifies as a reasonable restriction or not. And like Bhargava said, and the Constituent Assembly accepted, “The Supreme Court should ultimately be the arbiter and should have the final say in regard to the destinies of our nationals.”[6] The resolution of the tension between individual and society in the Fundamental Rights scheme of our Constitution thus also marks a resolution the scope of powers of Legislature/Executive and the Judiciary.

From the 1949 text, it is clear that the individual versus society question is sought to be resolved by a balancing act, with Article 19(1)(a) guaranteeing the freedom of speech to individual and Article 19(2) in light of social and national necessities. But it is not a perfect balancing act where both scales are equally weighed. Rather, the scale corresponding to social/national interests is made lighter after the amendment of draft Article 13(2) to include “reasonable” as well as much narrower grounds of restrictions than before; the scale of individual freedom remains as weighty. The degree to which a law can restrict speech then must be determined by this imperfect balance: It must not become heavier than the Article 19(2) scale. In other words, it must not fall outside the scope of Article 19(2). How well a law corresponds to this imperfect scale balancing individual and society remains for the judiciary to decide, but the judiciary cannot question the scale itself, or the specific balance at which it stands. The intent of the Constitution then, by giving this balancing scheme of 19(1)(a)-19(2), was that the question of how to balance individual against social or national interests need not be opened again in jurisprudence.

Making Law Where They Shouldn’t: The Problem with Courts Balancing Individual and Society

Interestingly, this was not to be. In light of certain left- and right-leaning publications, the question was opened up soon after independence, and this time by the Legislature, which brought about the First Amendment to the Constitution in 1951. One of the consequent amendments added more grounds to Article 19(2), in effect proposing a different balancing scheme between individual and society as far as speech was concerned. The scale of social/national interests corresponding to Article 19(2) was made weightier. A new balance was thus established.

The individual versus society dilemma of our law could have still ended, if the new balance was followed as the new standard for evaluating laws restricting speech upon. But it did not. Instead of merely applying the First Amendment’s new standard of balance, every time a freedom of speech issue came up before the Court, it opened up the question of balancing individual freedom against social interests yet again.

So in 1964, in Ranjit Udeshi v. State of Maharashtra[7], the Supreme Court holds regarding the individual’s right to freedom of speech and expression, “This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the general public and one such is the interest of public decency and morality.” This reasoning was ultimately used to uphold the conviction of sellers of Lady Chatterley’s Lover in the country. There are two problems with this reasoning: First, reasonable restrictions under Article 19(2) cannot be imposed “in the interest of the general public,” because that ground simply does not exist under Article 19(2). Second, “decency or morality” is one of the grounds under Article 19(2), not “public decency and morality.” Consideration of “public” and “public interest” as grounds to restrict speech indicates that the Court had opened up the question of what is the right balance between individual freedoms and social interests, when that question had already been resolved by the text of the Constitution.

In 1962, Kedarnath Singh v. State of Bihar[8], the Supreme Court had refused to strike down the offence of sedition as unconstitutional under Article 19(1)(a) guaranteeing individual right to freedom, citing a judgment from Victorian England to say that “Sedition is a crime against society…” This is interesting because the word “sedition” had actually been removed from draft Article 13(2) to the final Article 19(1)(a), which indicated that the balance of individual versus society in the Constitution had expressly rejected sedition as an offence. Nevertheless, Kedarnath opened up the question of what was the right balance between individual and society once again to prescribe another standard, whereby sedition remained constitutional.

In the earlier case of Virendra v. State of Punjab[9]in 1957, the Court had gone as far as to treat the freedom of speech and expression as a social interest, rather than a point of individual freedom. It had held, “Our social interest ordinarily demands the free propagation and interchange of views but circumstances may arise when the social interest in public order may require a reasonable subordination of the social interest in free speech and expression to the needs of our social interest in public order.” The question of the right balance between individual versus society was not just opened up, but also reframed as a question of two competing social interests: of speech and of order, with the individual being nullified.

Even in the more progressive judgments like S. Rangarajan v. P. Jagajivan Ram[10] of 1989, which upheld the constitutionality of public exhibition of Tamil film Oru Oru Gramathile, the question of how individual freedoms should be balanced against the society was implicitly asked. This is evident when the Court says: “There does indeed have to be a compromise between the interest of freedom of expression and social interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.” This reasoning was also relied upon in 2010 in S. Khushboo v. Kanniammal and Another[11], which ruled that the actress’ comments on virginity fell within the scope of protected speech under Article 19(1)(a).

While these judgments certainly give a more progressive answer on what is the right balance between individual freedom and social interests in governance of speech, the point is that this question is not one the Court should be asking at all! The question of what constitutes the right balance between individual freedoms and social priorities has already been asked and answered by the Constitution in laying down the scheme of Articles 19(1)(a)-19(2). But there seems to be a lack of clarity in understanding this. Consequently, what should have been a one-step test of merely interpreting the grounds under Article 19(2) and applying them to the facts of the given case, turned into a two-step approach: First, of asking what is the appropriate balance between individual freedom and social interests, and second, interpreting Article 19(2) in accordance to the solution for the appropriate balance found in each individual case. This resulted in a myriad of inconsistent standards for the scope of Article 19(2), because each time it was interpreted in background of a differing answer to the individual versus society question.

So in 1985 in Samresh Bose v. Amal Mitra[12], which progressively ruled that the novel Prajapati was not obscene, this two-step approach is applied, by first asking whether speech in the novel actually serves a social interest. This is à la Virendra and Ranjit Udeshi, whereby the question of what is the right balance is not just opened up but individual freedom is reframed as a competing social interest. The second step then is of asking if the social interest served by the novel is nulled by the competing social interest of preserving “decency or morality” under Article 19(2). Similar application of the two-step approach is manifested in Aveek Sarkar and Anr. v. State of West Bengal[13] in 2014, which held that a picture of Boris Becker and Barbara Feltus posing nude is protected under Article 19(1)(a).

This second line of judgments (Jagjivan Ram, Amal Mitra, S. Khushboo etc.) is of course laudable, because it evidently upholds freedom of speech and expression, unlike the first line of judgments (Ranjit Udeshi, Kedarnath, Virendra etc.) which upholds the constitutionality of many regressive speech-limiting laws. But what both these lines of judgments have in common is the same structural deficiencies: Neither of them in as many words, recognise the architecture already endowed by the Constitution for balancing individual freedoms and social interest. So as the first step of the two-step approach, all these judgments start creating their own buildings from scratch as an answer for the balance question. Some of these buildings provide more space for speech than others, but all the building designs are inherently arbitrary as the pre-existing building provided by the Constitution is not really taken into account till the second step. In the second step, the text of Article 19(2) is sought to be fitted in the individual buildings each judgment has created in the first step, rather than an attempt to interpret them within the architecture created by the Constitution for the balancing act. So in a way the progressive judgments which result out of this process are like the situation of a benevolent dictator: The outcomes happen to be nice, because of the personal traits or characteristics of the person making the judgment, and not because there are consistent or fool proof structures in place which will ensure an enlightened, or at least consistent outcome, irrespective of the personal outlooks of whosoever is the judge. It is then no surprise that there has been such a wide spectrum of varying standards in free speech judgments in India.

The Genius of Shreya Singhal: Closing the Individual versus Society Debate in Constitutional Law

In this background, the judgment in Shreya Singhal is most revolutionary because it recognises this precise problem of applying the two-step approach to open up the question of balancing acts. It not only does not open up this question again—either explicitly or implicitly, but also recognises that this question must not be the Court’s prerogative because the Constitution already answers it through its 19(1)(a)-19(2) architecture.

The judgment does this in two ways: One, by significantly emphasising several times on the point that speech or expression cannot be restricted outside of the grounds laid out under Article 19(2). Two, by refraining to interpret Article 19(2) in broad terms of social or public interests, and rather, favouring a narrow interpretation of the same.

All this is evident when Justice Nariman writes, “In the U.S. if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has be to be covered by one of the eight subject matters set out under Article 19(2). If it does not, and is outside the pale of 19(2), Indian courts will strike down such law.”(para 17) He then refers to Sakal Newspapers[14] case to lay down, “Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public.”(para 21) The judgment also refers to the Cricket Association of Bengal case[15] to lay down that restrictions under Article 19(1)(a) cannot “be in addition to those permissible under Article 19(2).”(para 29)

These are some of the most important statements from the judgment which mark a set it apart in the history of free speech judgments in India. Elsewhere it has been argued that Shreya Singhal adds to and clarifies the second line of progressive free speech judgments.[16] I would differ somewhat to say that Shreya Singhal marks a distinct departure from even this line of progressive judgments by discarding the two-step approach to ruling on free speech matters. By holding that public or social interest is not a ground to restrict speech under the Constitution, Shreya Singhal gives the prerogative of the individual versus society question back to the Constitution. It refrains from erecting its own building from scratch to answer what is the right balance between the two, and rather looks to the architecture the Constitution has already built. Ram Manohar Lohia judgment[17] of 1960, which strikes down Section 3 of U.P Special Powers Act as unconstitutional, is perhaps the only other one which follows this one-step approach. But even so, Shreya Singhal is more remarkable, because unlike Ram Manohar Lohia, it actually says in as many words, that opening the question of public interest against individual freedoms is strictly taboo in our law. This contributes an entirely new line of free speech jurisprudence in India, which is actually aware of the problems of the two-step approach that opens up the individual versus society question, and therefore refrains from following it.

In wake of this, Shreya Singhal chooses those interpretations of Article 19(2) which base themselves on the text of the Constitution rather than understanding it in a context of social or public interests. Therefore Ram Manohar Lohia’s narrow understanding of public order is used (para 33) along with Jagjivan Ram’s “spark in powder keg” test.(para 38) Extracts from Aveek Sarkar are cited to lay down a narrow interpretation of morality and decency.(para 46) Obliteration of the first step of the two-step approach enables the court to discard the social interest lens in its interpretation of Article 19(2), and rather look at the distinction between discussion, advocacy and incitement to decide which ones of these fall under the text of 19(2). This subsequently enables the collapse overtly broad tests like “tendency to cause” of Virendra, Kedarnath and Ramjilal[18] Modi into the “clear and present danger” or “spark in powder keg” tests of Lohia and Jagjivan Ram. (para 40) Having done this, the Court declares, “We do not find anything in the features outlined by the learned Additional Solicitor General to relax the Court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a Section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.”(para 28) All this is remarkable not merely because the right choices have been made, but because Shreya Singhal uses and explicitly lays, to the exclusion of other structures, a consistent and universal structure for making these choices, viz. the Constitutional scheme of 19(1)(a)-19(2).

Though there definitely exist problematic aspects in the judgment with regard to Article 14, Sections 69A and 79 of the Information Technology Act, what Shreya Singhal does for Article 19(1)(a) jurisprudence is ground-breaking. With incidents like NLU-Delhi protests against Abhish Mathew, the AIB Roast controversy, ban on India’s daughter, the Censor Board’s preposterous censorship tactics, and the silencing of Perumal Murugan in the recent past, the Indian public discourse is seeing a mounting tension between individual freedom and social conformity, and the degree of balance between the two. For such public discussions to continue, it is pertinent that the legal system works with standards which not just promote free exchange and discussion of ideas, but also are consistent in terms of the standards themselves. Shreya Singhal goes a long way in paving new path away from the contradictions which have riddled the legal understanding of our speech laws.